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Georgia Law Review

Winter, 1993

Symposium: Individual Rights and the Powers of Government

*415 A COMMENT ON THE STRUCTURE OF RIGHTS

Frederick Schauer [FNa1]

Copyright (c) 1993 by the Georgia Law Review Association, Inc.; Frederick Schauer

Rights matter, but rights are not all that matter. Even to those for whom rights loom large in personal and
public decision making, consequentialist considerations of policy and prudence still occupy a significant
proportion of the total decision-making picture. Indeed, the common picture of rights as “side constraints” [FN1]
or “trumps” [FN2] necessarily supposes that rights must be able to be side constraints on or trumps of
something. Thus, a recurring problem in the theory of the structure of rights is one of attempting to sort out the
relationship between rights and the background consequentialist considerations that rights sometimes, but
certainly not always, override.

It is one of the many virtues of Professor Fallon's project that it confronts this problem directly, attempting
with admirable precision of thought and language to understand how we can treat rights and “interests” as part
of the same decisional calculus while still retaining some sense of their separateness. At least in the context of
judicial review under the American Constitution, however, Professor Fallon maintains that such a reconciliation
is impossible. [FN3] He concludes that rights and consequential interests, and so too the government's powers to
foster consequential interests, are “conceptually interconnected” [FN4] or “conceptually *416 interdependent”
[FN5] and are accordingly, as he put it in the oral version of the lecture on which his article is based, to be put in
the “same intellectual hopper” that produces but “one calculation.” [FN6] His central claim appears to be that
rights and consequences are not nearly as distinct as is often supposed. [FN7]

My concerns with Professor Fallon's analysis are less in the domain of constitutional law than in that of
more general philosophical inquiry into the nature and structure of rights. Fallon may be right about the
necessary interconnectedness of rights with interests, powers, and consequences in American constitutional law.
I fear, however, that his prescriptions about the role of the American judiciary may lead him to make claims
about the structure of rights in general that are more extravagant than necessary for his purpose and that his
ideas, if accepted, would ultimately impair our understanding of the very nature of rights.

In order to focus the debate properly, let me recapitulate (or possibly reformulate) a central thread of
Professor Fallon's argument, at least as I understand it. Although Fallon looks at the intersection of rights with
interests, powers, and consequences from a number of different directions, he appears to place most weight on
the undoubtedly correct observation that it is frequently the case that rights can be and are outweighed by (mere)
interests. A few (of my own) examples will demonstrate the point. Although there is a right not to be

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discriminated against on account of race, this right may be overridden in cases of “compelling interest,” where it
is clear from the case law that the compelling interests include those that are simply consequentialist concerns of
particularly heavy weight. [FN8] Although the actual identification of a compelling *417 interest is rare, [FN9]
and some of those identifications erroneous, [FN10] it remains a central doctrinal point of equal protection
analysis that rights to be free from invidious discrimination can be overridden by nonrights-based governmental
interests, so long as those interests are present with sufficient force or weight.

So too with many other constitutional rights. The right to be free from discrimination on the basis of gender
gives way when the discrimination is “substantially related” to “important governmental” interests. [FN11] The
right to free speech may be outweighed, even within its coverage, by what used to be called a “clear and present
danger” to such governmental interests as national security, [FN12] a standard that still persists, albeit in
somewhat different form. [FN13] As with the analysis under the Equal Protection Clause, due process
constraints on state action are still subject to a “compelling interest” override, [FN14] as are some freedom of
religion rights [FN15] and as are a host of others well-documented both by Professor Fallon *418 and in the
literature. [FN16]

As I understand Professor Fallon's argument, he draws from the doctrinal fact of rights frequently being
overridden by interests the conclusion that rights, interests, and the power to protect interests are conceptually
interdependent. And if rights and interests are conceptually interdependent, and if it is settled ground that courts
are in the business of making decisions about rights, then it follows that courts necessarily are in the business of
making decisions about interests. [FN17] The implications of this are important and interesting, and Fallon treats
these questions of constitutional theory and judicial power with subtlety and insight. But these conclusions are
not my concern in this Comment. Rather, I want to probe just one step of what I take to be Fallon's three step
argument. Fallon's first step identifies the overridability of rights by interests, the second concludes from the
first that rights and interests are conceptually interdependent, and the third concludes from the second that courts
in the rights business are necessarily and properly in the interests business. Within this structure, I want to
accept the first and the third steps but challenge the second. I do not believe that the overridability of rights by
interests establishes conceptual interdependence in any interesting way, and thus I do not believe that this route
can get us to the destination, the legitimacy of judicial operation within the domain of interests, that Fallon and I
both agree is legitimate and desirable. So although I believe that an essential link in this particular
argumentative chain fails, I believe, but will not treat here, that there may be other chains, some of which Fallon
also deploys, that might serve analogous ultimate purposes.

*419 II

It may be important at the outset to recognize that our problem is situated within only one of two competing
accounts of rights and that under the other the problem is pretty much nonexistent. Under one account, which we
can call the rule-consequentialist account of rights, the entities we think of as rights exist within decision-
making structures, of which the most prominent is utilitarianism, that acknowledge only one ultimate value, such
as utility. Crude act-based versions of these structures, such as crude act-utilitarianism, have no room either for
rules or for rights, since the only decision to be made by any decision maker is the decision regarding which
among alternative courses of action will maximize utility in the particular case. [FN18]

More sophisticated versions of act-utilitarianism, [FN19] however, and all varieties of rule-utilitarianism,
[FN20] recognize that utility may not be maximized if all decision makers are authorized to attempt to maximize

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utility in each case as they see it. So in order to maximize utility over an array of decisions, the designers of
decision-making environments may, by the use of rules or rights, disable some decision makers from attempting
to maximize utility by their own lights. [FN21] Sophisticated act-utilitarianism and rule-utilitarianism both have
room for rights, therefore, because granting A a right to know is a way of disabling a decision maker from
making certain kinds of decisions in the domain of decision-making, that being a function of the belief either
that A might make better decisions about the utility of ir than would, for example, the state, or that, relatedly, the
state's decisions about ir are likely to be *420 sufficiently skewed that it is better to have such decisions made by
anyone but the state.

The important feature of this rule-consequentialist account of rights, however, is that the rights recognized,
entrenched, and perhaps even judicially enforced under a rule-consequentialist structure are recognized,
entrenched, and enforced precisely to maximize, in the long term, the very same interest—utility, or some
analogous moral primary—that it is the job of all decision makers within the system to maximize. If all rights
are strategic devices designed to serve consequentialist purposes, then Fallon is undoubtedly correct that rights
and interests are conceptually interdependent, this being the consequence of a system of total commensurability
within which it is a trivial truth that everything is conceptually interdependent. [FN22]

Although Fallon frequently characterizes his account of rights in rule-consequentialist terms, [FN23] he
apparently wishes to make a more substantial point, and I understand the more substantial point to be one which
presupposes that at least some rights have a deeper basis than they have under the instrumental account of rights
I have just sketched. So although Fallon may believe that some rights are consequentialist in origin—it would be
difficult to maintain that the Seventh Amendment right to trial by jury in civil cases reflects deep deontological
convictions—he appears not to believe that all constitutional rights are consequentialist in origin. Although he
does use the language of rights as reflecting interests, and although he does claim to distinguish his account of
rights from a more Kantian one, [FN24] Fallon trades on an ambiguity in understanding what is to count as an
“interest.” Although the main line of his argument supposes that interests are the kinds of consequentialist
concerns of policy that are often the reasons for governmental action, Fallon also sees rights as instrumentally
*421 reflecting and entrenching the kinds of deontological values—dignity, equality, privacy, fairness, and
autonomy [FN25]—that are not themselves consequentialist in flavor. Thus, Fallon appears to believe, at least
plausibly and probably correctly, that some constitutional rights represent the institutional entrenchment of
certain moral, human, or fundamental rights that are conceptually antecedent to the written Constitution. Thus,
the rights recognized by the Free Exercise Clause of the First Amendment, the cruel and unusual punishment
provisions of the Eighth, the anti-discrimination provisions of the Fourteenth, and some of the rights of criminal
defendants (such as the right against self-incrimination) are likely at their roots nonconsequentialist, even if
rights such as those protected by the Seventh Amendment and the Free Press Clause of the First remain
consequentialist to the core.

So if Fallon is concerned primarily with rights protecting nonconsequentialist “interests,” even as he

recognizes the existence of some rights that are more thorough-goingly consequentialist, then his argument has
more bite but is at the same time more problematic. For now he is observing (correctly) that constitutional rights
entrenching deep, real, foundational, moral, human rights are themselves capable of override in American
constitutional decision making by mere interests, a fact that suggests to him that rights and interests come much
more from the “same intellectual hopper” than is commonly supposed. [FN26] Moreover, insofar as Fallon relies
on Dworkin's concessions that rights are sometimes outweighed, [FN27] Fallon again takes the outweighability
or overridability of rights by interests to support the idea that rights and interests are more similar than they are
different. [FN28]

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*422 III

The problem identified by Fallon has been identified by some of the most prominent nonconsequentialist
rights theorists of our times, but each has skirted extensive confrontation with the complexities of the problem in
the same way. Charles Fried, for example, argues that a claim of right “blocks” an appeal to consequences
(interests). [FN29] But to the objection that this view is implausibly stringent (would we refrain from torturing
someone if we were certain that two minutes of nonpermanently disabling *423 torture would lead the person
being tortured to disclose the whereabouts of a nuclear weapon planted with a timing device in a large city?),
Fried argues that this kind of “extreme case” would constitute a “catastrophe,” such that the normal categories of
judgment and analysis become inapplicable. [FN30] Similarly, Robert Nozick defends a categorical structure of
rights, but explicitly seeks to “avoid” the question of whether his analysis can hold in the case of “catastrophic
moral horror.” [FN31] And Ronald Dworkin, defending his related conception of rights as trumps against the
claim that many rights are simply the result of a calculation that weights some interests more heavily than
others, insists that a claim of right (principle) can preempt a claim of policy even though that relationship would
fail to obtain in cases of genuine catastrophe. [FN32]

It is no accident that Fried, Nozick, and Dworkin all use the same word—“catastrophe”—to characterize the
circumstances under which all bets are off, and under which their claims of structural incommensurability are no
longer applicable. For all three want to suggest an association with catastrophe theory, the corner of
mathematics that attempts to model, understand, and apply the way in which some functions that are smooth
within some range suddenly shift (the cusp) to different functions or in dramatically different directions. [FN33]
But although there is an intuitive sense that the connection between mathematical catastrophe theory and the
limiting cases of rights theory is relevant, it is far from clear that catastrophe theory can do all of the work that
Fried, Nozick, and Dworkin expect of it. First, it may be harder to imagine the functions that are the concern of
rights theory as being radically discontinuous. Assume I have promised to meet you for lunch, and *424 assume
as well that my obligation to keep that promise is deontological and not consequentialist. And then assume that
because of some business transaction, it would cost me ten thousand dollars to break my promise. Although this
is a lot of money, it would not constitute the kind of world-threatening catastrophe that is the stuff of much of
the philosophical writing to which I refer. Moreover, this ten thousand dollars hardly looks like it is beyond
some identifiable cusp in a previously smooth curve. Rather, it is just an extremely high cost of complying with
a reasonably low-level moral obligation, and little in extant deontological theory, even with its catastrophe
variations, has attempted to confront it. [FN34] So too in constitutional law, as when the right to freedom of
political speech is restricted in the name of the compelling interest in election integrity and preventing voter
intimidation. [FN35]

Thus it seems much harder to imagine the kind of explanation we would give for why extraordinarily strong
interests, but not merely very strong interests, could change the rules of the game, in a way that we can imagine
the tipping point operating with respect to population change. Moreover, insofar as the borrowing of catastrophe
theory by Nozick, Fried, and Dworkin aims to make the somewhat different claim that moral theories
presuppose certain background conditions and that when the conditions do not obtain the theories no longer
apply, then the total failure of background conditions seems at the least inapt to the kinds of overrides that we
are discussing here.

I would accordingly conclude that although catastrophe theory may provide the resources to deal with why
the total stringency of Kantian categorical rights must give way in unexpected and truly horrific cases, it does
not seem to have the resources to deal with the possibility that deontologically conceived rights may have to be

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overridden when interests would otherwise have to be sacrificed to a very large, but short of catastrophic, extent.
And although I think this is a possibility to which Fried, Nozick, and Dworkin give too short shrift in the arena
of moral theory, I am convinced that this possibility comes quite close to the phenomenon Fallon seeks *425 to
explain. So if it is the case that the constitutional cases that Fallon takes as his raw data are ones in which
deontologically based rights are overridden by very strong state interests still falling short of any plausible
understanding of a catastrophe, then does this not mean that Fallon's commensurability claim is sound?

IV

As I indicated at the outset, I do not believe that Fallon's claim about conceptual interdependence, if taken as
essentially a claim about the commensurability of rights with interests, can be supported except within a stronger
consequentialist framework than Fallon appears willing to endorse. But Fallon, on his chosen soft
consequentialist [FN36] path, has adopted a conception of rights that is itself problematic, although it facilitates
his ultimate conclusion about commensurability. There may be an alternative conception of rights, however, that
better reflects our practices with rights, even though it may be a conception that is less facilitative to Fallon's
conclusions about commensurability. Thus, exploring the roots of Fallon's misstep may take us down a path of a
somewhat reformulated conception of what it is to have a right in the first place. So let us see just what it is,
structurally, to say that one has a right. Or to put it differently, what does the right-holder have by virtue of
having the right?

Under the ordinary conception of what a right-holder holds, the right to it is, simply, the right actually to do
it. [FN37] Insofar as the right-holder cannot, then the right-holder's right has been infringed. [FN38] *426 There
is thus some close connection between -ing and the right to , and a right-holder who cannot has been deprived of
something, albeit perhaps with adequate justification. And if the ability actually to do is central to understanding
a right, then it is possible that Fallon is correct in supposing that depriving the right holder of -ability in the
name of mere interests demonstrates the reducibility of the right to to the same coin that generated the interests
that were sufficient to take it away. [FN39]

This ability-connected conception of rights, however, seems possibly unfaithful to the way in which rights
operate in general, and more certainly unfaithful to the way in which rights operate in American constitutional
law. Consider Globe Newspaper Co. v. Superior Court, [FN40] in which Justice Brennan's majority opinion
struck down as a violation of the First Amendment's free press guarantee a Massachusetts law mandating closure
of rape trials in which the complaining witness is a minor. [FN41] Justice Brennan's opinion went on, however,
to make it clear that the State's interest in the protection of minors in these circumstances was sufficiently
“compelling” to override the strictures of the Free Press Clause, but that that compelling interest could be served
in a more narrowly tailored way by a case by case determination in the particular case. [FN42] The court in a
particular case could then determine whether closure was necessary in light of numerous factors including the
age and psychological state of the victim, the nature of the crime, and the wishes of the victim and her parents.

So suppose that Massachusetts cleans up its law to take account of the decision in Globe Newspaper. And
suppose as well that pursuant to a presumably permissible particularized inquiry the trial judge mandates closure
of some trial, and that that order is sustained on appeal. The consequence of this series of events is *427 that the
newspaper's constitutional rights have been limited in the service of a compelling interest. [FN43] But
presumably the limitation is, doctrinally, legitimate, so that although the right has been infringed, it has not been
violated. The question then is whether the newspaper is “owed” something—whether as a consequence of the

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legitimate interference with its constitutional rights in the service of a compelling interest it has been wronged in
some meaningful way.

My suspicion is that we do not think that the newspaper has been wronged, and so too in many other cases in
which constitutional rights are justifiably overridden, even in the name of interests. Consider the reparations
approved by Congress in 1988 for the survivors of the internment of Japanese-Americans during the Second
World War. [FN44] The approval of reparations, both by Congress and in public debate, was premised on the
view that the internment was egregiously wrong and that the Supreme Court was equally egregiously wrong to
allow it. That view is, to me, undoubtedly correct, but it is worth considering the fact that both Congress and
public discourse appeared to take the wrongness of the infringement of equal protection rights as a necessary
condition for the grant of reparations. Very little in the policy or constitutional debate considered the possibility
that reparations might be justified in other cases even if the infringement were considered justified. If the
governmental interest had indeed been compelling, which it was not, a plausible case could have been made that
reparations were still owed to the victims, because they had, even if justifiably, been compelled to forfeit a right
in the service of the common weal.

But this is not the normal pattern of constitutional discourse or *428 of constitutional adjudication. [FN45]
Although there may not be a large enough sample to warrant much of a generalization about the discourse of
compelling interests, it seems plausible to speculate that when a genuine right is overridden in the service of
genuine and legitimately compelling interests, we as a society do not feel obliged to provide the right-holder,
whose right to did not allow her to do any -ing, with even an apology, let alone compensation. But if justifiably
denying the ability actually to produces neither the need for remorse nor compensation, then perhaps the right to
needs to be reconceived, and to that I now turn.

If justifiably denying the ability to to a person who holds a right to generates neither remorse nor
compensation, then one explanation might be that the right to might not be a right to , but rather the right to
some -related thing, which might still be satisfied when the right-holder is denied the ability to in the service of
a sufficiently large amount of “interest.” But what might that be?

Suppose that the right to is not a right to , but rather a right not to have the ability to infringed without the
provision of a justification of special strength. This is a reformulation of the idea of a right that appears quite
consistent with the operation of much of American constitutional law. What distinguishes my nonright to drive
75 miles per hour from my right to speak is that the state may restrict the former upon a showing of a mere
rational basis, [FN46] but may restrict the latter only by satisfying the elevated standard represented by “clear
and present danger” or its compatriots. And *429 what distinguishes my nonright not to be discriminated against
on account of my age [FN47] from my right not to be discriminated against on account of my race is again that
the former may be restricted on only a rational basis showing, but the latter requires a “compelling interest”
justification.

What this appears to indicate is that what I get when I move from nonright to right is not (necessarily) the
ability to have or to engage in the -ing to which a right to pertains, but rather simply the right to put the state to
a higher burden of justification. A right to then just is the right to have the state not restrict the ability
to without showing a compelling interest or the like. If, then, the state restricts after showing a compelling
interest, it has in fact given me what the right demands. And because I have received all that the right demands,

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it now makes sense, as it did not under the traditional conception, just why the state, having given me all to
which I was entitled, need not feel remorse and need not provide me with compensation.

Removing the ability to from the right to is far from making the right hollow. Rather, this reconception now
sees rights as shields against governmental interests. And thus rights, like shields, can be thought of as having
genuine force even though they may not be absolute. To shift to my preferred metaphor, [FN48] think about
what happens when we compare rights to suits of armor. Wearing a suit of armor would protect me against
arrows, knives, blackjacks, fists, and small bullets, and thus it is plain that wearing a suit of armor provides me
with a degree of protection I would not otherwise have had. But that suit of armor does not protect me against
large bore ammunition, bombs, or artillery fire and is as a result less than totally protective.

Just like rights. If we understand rights in the way that we understand suits of armor, we see that what rights
do is to protect against certain low justification (small bore) efforts to restrict the activities that the rights are
rights to, but do not protect against high justification (large bore) efforts to restrict those activities. The rights
derive their force and their meaning from their ability to protect against small bore infringements, and this is so
even *430 though they do not have the ability to protect against those large bore infringements that we identify
with the language of compelling interests. Under this reconception, the right to now just is the right to demand
the higher level of justification, and the right is satisfied when that higher level of justification is respected. But
respecting the higher burden of justification does not entail taking that higher burden to be absolute, and thus the
potential infringer respects the higher burden of justification, and so satisfies the right, even when the higher
burden is actually met.

VI

When we see rights as shields in this way, we have in hand a useful tool for explaining the operation of
compelling interests in American constitutional law and for understanding the overriding of rights by interests
even in cases well short of catastrophe. Under this account of rights, a right exists insofar as it provides some
protection against the small bore justifications that would otherwise be sufficient to restrict the activities now
protected by the right. Its force consists in its ability to raise the level of the minimally sufficient justification to
take away the right-holder's ability to . This force, however, exists even if the degree of elevation of the level of
justification is only moderate (the so-called “intermediate scrutiny” cases), and certainly nothing in this
conception of rights requires that the right exists only insofar as it provides absolute or even near absolute
protection for the -ability it protects.

This conception of rights, however, provides scant warrant for the claim that rights and interests are
conceptually interconnected in some strong sense. It is of course true that rights and interests interact with each
other under this or any other conception of rights, but mere interaction is far weaker than the claim that Fallon
wishes to make and far weaker than necessary to get him to his desired conclusion about balancing, practical
wisdom, or statecraft. But nothing other than interaction emerges out of this conception of rights. Just as the
piercing of my hypothetical armor by a bullet scarcely demonstrates that bullets and armor are basically the
same thing (or that being an armorer necessarily qualifies one to be a gunsmith), so too does the ability to point
out *431 that rights are frequently or occasionally pierced by mere interests travelling at sufficiently high speed
scarcely demonstrate that deontological rights and consequentialist interests are interestingly reducible to the
same coin. Once we see rights as shields rather than trumps, [FN49] we see that their susceptibility to override
by a sufficient aggregation of mere interests is not inconsistent with the conceptual distinctiveness of rights and

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interests, nor inconsistent with rights and interests coming not from the same but from the importantly distinct
intellectual hoppers of consequentialism and deontology.

Without the claim of conceptual interconnectedness, there is an important link missing in Fallon's
argumentative chain. For without conceptual interconnectedness he can no longer claim that courts that are in
the rights business are necessarily in the interests business, and he can no longer claim that courts are
necessarily engaged in the task of “balancing” or “statecraft” in which governmental interests and their
importance are persistently subject to careful inspection. For without the claim of conceptual
interconnectedness, it is possible to say that interests are a concern of courts when and only when they intrude in
a sufficiently forceful way. Unlike the decision maker engaged in balancing or statecraft, the decision maker
under this model does not go out to make sure that all interests have been recognized and taken into account, but
instead keeps her eye on a smaller primary task, here the protection of rights, unless and until interests appear in
such a forceful way that their power cannot be avoided. [FN50]

*432 My account presupposes a certain psychology of decision making, one I have defended at greater
length elsewhere. [FN51] Briefly, my account presupposes that a decision maker can presumptively, but not
conclusively, ignore some factor, or even the universe of factors but one. She thus remains open to the
possibility that some factor might be relevant in a few extraordinary cases, but still does not take it into account
unless it appears to a particularly great degree. This account recognizes the potential of override by factors
presumptively but not conclusively excluded from the decision-making process and so recognizes that factors
normally off the table and not under active consideration may on occasion present themselves with sufficient
force that they cannot be avoided. This, it seems to me, describes the adjudication of rights more accurately than
does the model of statecraft or balancing. Especially in the domain of rights with deontological foundations, and
perhaps with all constitutional rights regardless of their philosophical foundations, judicial protection seems
both descriptively and normatively far more focused on the right and its contours, and far less on the interests
that might conceivably outweigh it, than either a balancing or statecraft model would suggest.

Because of the operation of the selection effect, Fallon's balancing [FN52] or statecraft model may be
especially apt if we focus only on *433 the constitutional cases that are decided by the Supreme Court. Insofar
as a range of factors contributes to primarily only the hard cases reaching the Supreme Court at all, [FN53] it is
possible that those cases will be ones in which the potentially overriding interests are particularly strong, and
thus virtually on or slightly over the threshold of overridability established by the force of the right. If that is the
case, then interests, normally outside the central domain of rights-based decision making, could still be more
actively a part of the decision-making process than would be the case for a decision-making environment less
focused on the hard cases. The consequence of this is that Fallon may very well be right (and indeed I think he
is) about balancing, practical wisdom, and statecraft [FN54] with respect to the cases that are decided in the
Supreme Court. But now we see that such a conclusion arises because of something about the Supreme Court
and its array of cases. It does not arise because of some feature of rights themselves, or because of a deep
conceptual relationship of rights to interests. And it certainly does not arise because of a sameness about rights
and interests that is more important than their differences.

VII

My disagreements with Fallon occupy a space far smaller than that occupied by our areas of agreement.
Moreover, it is worth reemphasizing that even if Fallon is mistaken in making broader claims for the

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interconnectedness of rights and interests than I think justified, this has relatively little effect on the full array of
his claims about the nature of constitutional adjudication. Nevertheless, a crucial aspect of constitutional
adjudication is an aspect it shares with some of the most enduring questions of moral theory and social
philosophy, the aspect of trying to explain the relationship between nonconsequentialist rights and the
consequentialist*434 considerations that may at times override them. And in Fallon's attempt to explain the
operation of American constitutional law and to urge a particular conception of judging within it, he may have
suggested a relationship between rights and interests stronger than he needs and stronger than I think justified.
That I have taken up this much space on what is a relatively small corner of Fallon's project, however, is not
something for which I feel regret. Sorting out our understanding of the structure of rights is an enterprise no less
important than understanding the nature of American constitutional adjudication, and as Fallon himself plainly
recognizes, a better understanding of the former will likely lead to a better understanding of the latter.

[FNa1]. Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard
University. This Article is the written version of comments delivered on the occasion of and responding to
Richard Fallon's Individual Rights and the Powers of Government, the 1992 Sibley Lecture at the University of
Georgia School of Law. An earlier version of the ideas set out here was given at the American Philosophical
Association (Pacific Division) and at the Department of Philosophy, Wayne State University, both under the title
of Rights, Justifications, and the Concept of a Baseline Rule. I am grateful to Walter Sinnott-Armstrong and
Alan Wertheimer for numerous fruitful conversations on the topics I address here.

[FN1] ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 26-53 (1974).

[FN2] RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 90-100, 190-97 (1977).

[FN3] Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 GA.L.REV. 343 (1993).

[FN4] Id. at 344, 347, 371.

[FN5] Id. at 345, 361, 363, 365, 376.

[FN6] Richard H. Fallon, Jr., Address at the Sibley Lecture, University of Georgia School of Law (Oct. 29,
1992) (audio tape on file with University of Georgia School of Law Library).

[FN7] Fallon, supra note 3, at 387, 389-90.

[FN8] See, e.g., Loving v. Virginia, 388 U.S. 1 (1967); Korematsu v. United States, 323 U.S. 214 (1944).

[FN9] See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection, 86 HARV.L.REV. 1 (1972).

[FN10] The most obvious and notorious example is Korematsu.

[FN11] Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197
(1976).

[FN12] Schenck v. United States, 249 U.S. 47, 52 (1919).

[FN13] See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (replacing “clear and present danger”

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test with test measuring intent to produce imminent lawless action and likelihood of producing same); see also
New York v. Ferber, 458 U.S. 747, 756-58 (1982) (holding that New York's interest in protection of children
was a sufficiently “compelling interest” to produce non-protection even in area of First Amendment's coverage);
United States v. Progressive, Inc., 467 F.Supp. 990 (W.D.Wis.1979) (holding that interest in forestalling
possible nuclear devastation could outweigh free speech rights). A similar structure explains the Court's decision
in Burson v. Freeman, 112 S.Ct. 1846 (1992) (allowing restriction on plainly political speech in order to serve
“compelling interest” in allowing voters to be free from polling place intimidation). And note also the
defamation cases, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); New York Times v. Sullivan, 376 U.S.
254 (1964), in which the State's interest in preventing reputational harm was sufficient to produce First
Amendment inspired defamation rules that still allow recovery under some circumstances. Now, it is true that in
these latter cases the interests in protecting children and in protecting reputation might plausibly be described as
rights rather than interests, but given that these rights are not themselves recognized by the Constitution or
protected directly by the Court, it is plausible for purposes of this analysis to think of them as interests in
Fallon's and my sense.

[FN14] See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

[FN15] See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).

[FN16] See Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in
Constitutional Adjudication, 68 B.U.L.REV. 917 (1988); Symposium, Conference on Compelling Government
Interests: The Mystery of Constitutional Analysis, 55 ALB.L.REV. 535 (1992).

[FN17] From here on I will speak only of “interests” rather than the conjunction of powers with interests. When
Fallon is speaking about powers, he is referring to the power to protect mere interests, the power often referred
to as the “police power,” and thus nothing of analytic interest will be lost if I attempt to achieve felicity in
expression for what follows by referring only to “interests.”

[FN18] Maximally particularistic act-consequentialism exists only as a construct and no real consequentialist is
willing to defend anything looking like the caricature in the text.

[FN19] E.g., G.E. MOORE, PRINCIPIA ETHICA (1929); DONALD REGAN, UTILITARIANISM AND
COOPERATION (1980); J. Urmson, The Interpretation of the Moral Philosophy of J.S. Mill, 3 PHIL.Q. 3
(1953); Donald Regan, Authority and Value: Reflections on Raz's Morality of Freedom, 62 S.CAL.L.REV. 995
(1989); J.J.C. Smart, Extreme and Restricted Utilitarianism, 6 PHIL.Q. 344 (1956).

[FN20] E.g., Richard D. Brandt, Fairness to Indirect Optimific Theories in Ethics, 98 ETHICS 341 (1988).
Another example would be the reasoning process to be adopted by the “proles” but not the “archangels” in R.M.
HARE, MORAL THINKING: ITS LEVELS, METHOD AND POINT (1981).

[FN21] See Frederick Schauer, Rights as Rules, 5 LAW & PHIL. 115 (1987).

[FN22] Even if this were true, Fallon's third step might not follow from it because the very same artificial
separation within the domain of the conceptually interdependent that produced rights in the first place might
carry over and serve to disable rights focused decision makers from making certain kinds of direct calculations
of utility except in certain extreme circumstances. But the plausibility of the foregoing turns totally on the
plausibility of an “except in certain extreme circumstances” limitation, a topic I explore in part VI infra.

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[FN23] Fallon, supra note 3, at 375.

[FN24] Id. at 351.

[FN25] Id. at 352-55.

[FN26] It is true but less interesting that rights are sometimes overridden in the name of other rights. Here the
whole literature on moral dilemmas, e.g., WALTER SINNOTT-ARMSTRONG, MORAL DILEMMAS (1988),
becomes relevant, but questions about the conflicts of rights, duties, or obligations are structurally different from
questions about when, if at all, rights, duties, and obligations must yield to a sufficiently intense aggregation of
lower order interests.

[FN27] Fallon, supra note 3, at 369-71.

[FN28] At times Fallon appears to reject the idea of outweighability or overridability entirely, particularly when
he speaks of rights ending where powers begin. E.g., id. at 369. This is not the language of override, but rather
the language of a structure pursuant to which the boundaries of rights are defined by and coextensive with the
boundaries of the power to restrict them. But both as to moral theory and constitutional law, this account seems
mistaken. Consistent with much of the literature on prima facie rights, reasons, duties, and obligations, I believe
that it is important to distinguish what we have a reason (or obligation, duty, or right) to do from what we ought
to do, all things considered. See Barry Loewer & Marvin Belzer, Prima Facie Obligation: Its Deconstruction and
Reconstruction, in JOHN SEARLE AND HIS CRITICS 359 (Ernest LePore & Robert Van Gulick eds., 1991);
W.D. ROSS, THE RIGHT AND THE GOOD 19 (1930); John Searle, Prima-facie Obligations, in
PHILOSOPHICAL SUBJECTS 238 (Zak van Straaten ed., 1980); A. JOHN SIMMONS, MORAL PRINCIPLES
AND POLITICAL OBLIGATIONS 7-28 (1979). And so too in constitutional law, where it seems equally
important, as well as descriptively accurate, to distinguish what there is a constitutional right to do from what
one is permitted to do, all things including the existence of compelling interests included. Indeed, virtually all of
the case law on compelling interests, including not only the case law on individual rights but also the case law
on the Tenth Amendment, e.g., New York v. United States, 112 S.Ct. 2408, 2418 (1992); National League of
Cities v. Usery, 426 U.S. 833, 842-43 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985), is consistent with this structure but not the structure that Fallon depicts of rights and powers
abutting but not overlapping each other. Thus, Fallon would appear to want to maintain that, for example, the
best understanding of a right to free speech is that there is a right to freedom of speech, but not a right to speak
in ways that would intentionally incite imminent lawless action. By contrast, I would want to maintain that the
coverage of the free speech right includes, inter alia, all public political advocacy, but that certain sufficiently
clear dangers to public safety justify overriding that right. See Frederick Schauer, Codifying the First
Amendment: New York v. Ferber, 1982 SUP.CT.REV. 285; Frederick Schauer, Categories and the First
Amendment: A Play in Three Acts, 34 VAND.L.REV. 265 (1981). And as I argue elsewhere, this is not just a
semantic difference, but may be important in understanding how rights defined at a moderately high degree of
generality can serve as guides for future action in a world of uncertainty in a way that rights defined in a way
that makes them absolute by definition cannot. Id. at 296-305. So if all rights are defined by all of their limits,
and if all of those limits are in turn defined by the full set of cases in which the right is not effectuated, then
Fallon's claim about conceptual interdependence is more plausible than I argue in the text. But he then achieves
that plausibility at the sacrifice of so much of our traditional philosophical and constitutional understanding of
the nature of rights that I will proceed to assume that he does not, without more argument, wish to rely heavily
on this approach.

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[FN29] CHARLES FRIED, RIGHT AND WRONG 81 (1978).

[FN30] Id. at 10, 31, 184.

[FN31] ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 29 n. * (1974).

[FN32] Ronald Dworkin, The Rights of Myron Farber, N.Y.R. BOOKS, Oct. 26, 1978, at 34, 34.

[FN33] The classic works in catastrophe theory include RENE THOM, STRUCTURAL STABILITY AND
MORPHOGENESIS (1975), and EDWARD ZEEMAN, CATASTROPHE THEORY (1977). A fairly useful
introduction can be found in A.G. WILSON, CATASTROPHE THEORY AND BIFURCATION:
APPLICATIONS TO URBAN AND REGIONAL SYSTEMS 1-31 (1981). Among the most obvious
applications of catastrophe theory is the phenomenon of the tipping point, whereby majority residents of some
locality leave the locality at rate r up until some percentage of minority population is reached, at which time the
departure rate increases dramatically. See R.I. Woods, Population Turnover, Tipping Points and Markov Chains,
2 TRANSACTIONS OF INST. OF BRITISH GEOGRAPHERS 473 (new series 1977).

[FN34] One of the more noteworthy exceptions is JUDITH J. THOMSON, THE REALM OF RIGHTS (1990).

[FN35] Burson v. Freeman, 112 S.Ct. 1846, 1851 (1992).

[FN36] I would still want to describe it as nonconsequentialist, but a nonconsequentialism that recognizes the
place for instrumental rules and rights even with the deontological moral structure. It seems to me a simple
mistake, although one commonly made, e.g., David O. Brink, Legal Theory, Legal Interpretation, and Judicial
Review, 17 PHIL. & PUB.AFF. 105 (1988); Michael Moore, A Natural Law Theory of Interpretation, 58
S.CAL.L.REV. 279 (1985), to assume that moral realist and deontological accounts of decision making must be
particularist, and I see no reason why the deontologist cannot adopt formal rules in order to minimize the
number of moral mistakes over a run of instances.

[FN37] For an example of this genre, and one of the best, see Joel Feinberg, The Nature and Value of Rights, 4
J. VALUE INQUIRY 243 (1970).

[FN38] I adopt here the conventional terminology, pursuant to which rights are either satisfied or infringed, with
only unjustified infringements being referred to as “violations.” Alan Gewirth, Are There Any Absolute Rights?,
31 PHIL.Q. 1 (1981); Judith J. Thomson, Some Ruminations on Rights, 19 ARIZ.L.REV. 45 (1977); see also
Robert Nozick, Moral Complications and Moral Structures, 13 NAT.L. FORUM 1 (1968).

[FN39] It is possible that even if this is the proper conception of rights, Fallon's claim still cannot be maintained.
But since I argue that Fallon's claim definitely cannot be maintained under an alternative conception of rights
that seems better to explain both our intuitions and our experiences with rights, I can afford to stipulate for the
sake of argument that Fallon's argument is strong enough to prevail against the weaker conception of rights that
I reject.

[FN40] 457 U.S. 596 (1982).

[FN41] Id. at 610-11.

[FN42] Id. at 607-09.

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[FN43] Globe Newspaper is a structurally good case to illustrate my point, but I recognize that in a pre-legal
sense it is backwards. That is, Globe Newspaper may be a case in which a morally antecedent and deontological
but constitutionally unrecognized right to privacy on the part of a minor rape victim outweighs the
consequentialist interest, converted into a constitutional right, of freedom of the press.

[FN44] United States Citizens of Japanese Ancestry and Resident Aliens Act, Pub.L. No., 100-383, 102 Stat.
903 (1988) (codified at 50 U.S.C. § 1989 (1988)) (implementing recommendations of Commission on Wartime
Relocation and Internment of Civilians).

[FN45] If it were, then we might expect that those who are injured in the service of the constitutional rights of
others might have grounds for compensation, if not from the right-holder then from the public whose interest the
right protects. In the mirror image of the problem I discuss in the text, there are cases in which the
nonconstitutional interests of individuals are sacrificed to the rights of others. If we believed that there were
some moral residuum when we had done, on balance, the right thing, we might be more inclined to think
seriously about compensation in cases such as this. See Frederick Schauer, Uncoupling Free Speech, 92
COLUM.L.REV. 1321, 1322-23 (1992).

[FN46] On mere rationality in the due process area, see Williamson v. Lee Optical Co., 348 U.S. 483 (1955);
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952); West Coast Hotel Co. v. Parrish, 300 U.S. 379
(1937).

[FN47] See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314-17 (1976).

[FN48] Frederick Schauer, Can Rights Be Abused?, 31 PHIL.Q. 227 (1981).

[FN49] Even the metaphor of the low trump rather than the ace does not help, because although that metaphor
might be consistent with the ability of rights to be overridden by other rights, it does not explain the ability of
rights to be overridden by interests. The deuce of trumps is not defeated by even the ace of any other suit, no
matter how hard that ace is slammed down on the table.

[FN50] Here the issues implicate the largest questions of legal theory, or at least that range of large questions
that pertain to the debate about whether law itself is better seen as largely coextensive, or at least largely
overlapping, with the full range of socially recognized moral and political values, as Dworkin and much of the
modern anti-positivist tradition would have it, or is, presumptively if not absolutely, a relatively limited domain
of pedigreed norms overlapping somewhat, but only somewhat, with the full array of extant social values. See
Frederick Schauer, Constitutional Positivism, 25 CONN.L.REV. (forthcoming July 1993); Frederick Schauer,
Rules and the Rule of Law, 14 HARV.J.L. & PUB. POL'Y 645 (1991). For if a limited domain account rings
true, then there is much less of a case for adjudication as taking in the much larger domain of social values. But
if the limited domain account is mistaken, then Fallon's argument against limiting the field of judicially
cognizable values becomes much more persuasive. It is thus one of the numerous virtues of Fallon's project that
it seeks to connect the enterprise of attempting to understand the nature of American constitutional law with the
enterprise of attempting to understand the very nature of law itself. But in this sense, the disagreements between
us may reflect larger disagreements about the nature of law than Fallon addresses at this time.

[FN51] See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION

OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991).

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[FN52] Fallon expresses some reluctance to use the word “balancing,” which he recognizes as a metaphor.
Fallon, supra note 3, at 346 n. 13. But I do not think that he is reluctant enough. There is something about the
very word “balance” that suggests equipoise, and thus the metaphor of balancing in judicial context suggests that
the consideration of numerous factors is not distorted by ex ante weightings of some factors and presumptive
exclusions of others. Thus, it seems distortingly reductionist to describe as “balancing” both the unskewed and
unweighted consideration of all relevant interests most associated (even if in a caricatured fashion) with Justices
Frankfurter and Harlan, see Kovacs v. Cooper, 336 U.S. 77, 90-97 (1949) (Frankfurter, J., concurring);
Konigsberg v. State Bar of Cal., 366 U.S. 36, 51 (1961) (Harlan, J.); see also Wallace Mendelson, The First
Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 VAND.L.REV. 479, 484-85 (1964), and the
strong but overridable presumption most commonly associated with the “clear and present danger” standard or
its equivalents.

[FN53] See Frederick Schauer, Judging in a Corner of the Law, 61 S.CAL.L.REV. 1717, 1726 (1988).

[FN54] I would reiterate, however, that lawyers should not claim that they have some special abilities not
possessed by others with reference either to statecraft or to practical wisdom. Id. at 1732.
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END OF DOCUMENT

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